Politics. Perceptions. Participation.

Thursday, 18 February 2016

Work pressure -
it’s a much bandied about phrase. While often associated with long hours and
the compulsion to deliver difficult pieces of work in impossibly short
time spans, the specifics of work pressure vary vastly from profession to
profession. For the most part, work pressure stays a nebulous and ominous
force, since quantifying it opens a Pandora’s Box in its own right. How would
you measure work pressure – is it by looking at the number of hours that a
person works in a day, the number of days of leave they get in a month, the
number of pieces of work they have to send out every day or a permutation and
combination of all of these as well as other factors?

Judges represent
one third of the triumvirate of actors that make up the judicial system. In many
ways, they are the constants of the system. Litigants come as their need arises
and lawyers work on case by case basis. Judges however, are in court all day,
every day, listening to disputes, deciding on them and writing judgements. Currently, India has 601 High Court judges.
Add to this number the 25 judges of the Supreme Court and you have 626
representatives in the higher judiciary for a population of 1.252 billion
people. Right away, without trying to quantify anything, those numbers tell you
that High Court judges are facing acute work pressure.

We know that High
Court judges are having difficult days at work, but effecting systemic change
and understanding the root of the problem, means looking at judicial work
pressure from a quantitative perspective. This is where the DAKSH database
comes in. Using the database, we are able to identify and analyse a key
statistic to quantify judge’s work pressure – the average number of hearings
that appear before a judge each day (court wise). Below is a chart that provides
this number for certain High Courts in our database.

To make real
sense of these statistics, we need to take a step back and look at another
number – the daily working hours for a judge. On average, judges spend between
five and five and a half hours a day hearing and deciding cases. That is 300 to
350 minutes. With that figure in mind, take another look at the chart. A quick explanation on the chart- The courts
included have been chosen to represent a range of hearings per day. There are
three categories that have been represented– courts with a low number (Himachal
Pradesh), courts with a medium number (Orissa) and courts with a high number (Patna).

If we do some
basic division, it tells us that most (relatively) relaxed High Court judges in the country
have 15-16 minutes to hear each case that comes before them, while the busiest
judges have about two and a half minutes to hear a case and on average, judges
have approximately five or six minutes to decide the outcome of each hearing!

This alarming
statistic raises serious questions on the fairness of hearings in the courts as all parties may not get an adequate opportunity in each hearing.

Tuesday, 9 February 2016

Its time for judge led litigation
system to be actively seriously considered as a means of tackling increasing
pendency.

Recently there were reports
of the announcement of a joint conference of the chief ministers
and the chief justices of the various High Courts called by the Chief Justice
of India. That the conference is being held within one year of the previous
conference as against the usual practice of two years is a good indication of
the importance of the topic.

Concerns about the functioning of
our judicial process have been simmering for quite some time. There have been
innumerable studies by the Law Commission and academics highlighting the
failure of the judicial process as currently followed in practice. The travails
of our adjournment ridden litigants led court process is now widely documented
- in research papers, media reports and art forms.

One of the radical measures that was
being considered a few years back was the idea of 'court led litigation' or a
'judge led case management’. The
245th Law Commission Report,
‘Arrears and Backlog: Creating Additional Judicial (Wo)manpower’ released in
July 2014refers (in foot note 14 on page 8) to a consultation paper on case management
which can be accessed here.

What is judge led case management? In essence it means that:

§As soon as a case is filed the judge will decide on the nature and level
of complexity of the case. This can be changed later on by the judge.

§Before commencement of proceedings, the judge, registry and the parties
will agree on a schedule for filing of evidence.

§Judge shall have complete visibility on the stage-wise progress of each
case. Information Technology tools to be used for this purpose.

§After completion of admission of the petition and denial of documents
the judge may refer the case to ADR mechanisms

§If ADR mechanisms fail then evidence to be recorded before a
commissioner

§Cases to be called for hearing on completion of evidence being recorded.
The number of adjournments to be granted would be restricted as per law

A court led litigation process has
now been in place in US, UK and Australia (with local variations) for more than
a decade - and all indications are that it has been a resounding success.

This may prompt the detractors of
such a system to say, "What works in those developed Westernised countries
will not work for us, because:

1.The social profile of litigants require the system to be lenient
with timelines for justice to be truly served

2.Very often it is the state that seeks adjournments due to lack
of manpower and other capacity

3.A shortage of judges means that adjournments are a necessity for
both sides, more often than not"

For a moment let us give some
thought to what are the enablers for a judge-led litigation process to be
effectively implemented:

§An in-depth study of the type of litigants and reasons for adjournment
seeking so as to identify cases for which such a system would not be suitable

§More judges to be appointed so as to allow them to dedicate more time
for each case

§Additional support staff to be appointed for court management

§Investment in Information Technology tools and infrastructure

None of the above is beyond our means.
Perhaps it is the means of making an informed decision that is slowly becoming
beyond us.

The recently
enacted Commercial
Courts Act has introduced the judge led litigation process. What should we infer
from this? That high stakes commercial disputes between more or less equally
well stocked litigants are more important to be dispensed justice promptly?
Lets hope not. Lets hope this is only the first of the many nature of disputes in which a court led litigation process would be introduced.

Tuesday, 26 January 2016

By Sandeep SureshOn March 19
2010, adivision bench of the Supreme Court of India (SC) inMathai @ Joby v George((2010) 4 SCC 358) had referred
the matter to a constitution bench to determine the kind of cases in whichspecial leave to appeal could be
granted under Article 136 of the Constitution. Thus, the ambit of the
‘discretionary’ appellate jurisdiction of the SC was sought to be determined.

The concern behind this
reference order in 2010 was thatunder
Article 136, “all kinds of special leave petitions were being filed against
every kind of order”.The
order cited two aspects of this issue: 1. arrears in the SC were increasing
heavily and Special Leave Petitions (SLPs) formed the main chunk and 2. the SC
was being converted into a typical appellate court entertaining matters that do
not involve any significant questions of law or the Constitution. Additionally,
the reference order listed out a few categories of cases that could be
entertained under Article 136 for reference of the constitution bench. Matters
involving substantial questions of law and the Constitution, matters of public
importance, validity of Central and State laws and cases of grave miscarriage
of justice were some of the main types of cases mentioned.

However, on
January 11 2016, a five-Judge constitution bench refused to reduce the scope of
Article 136 either by issuing guidelines or by limiting the types of cases that
could be granted special leave.

While
refusing to do so, the SC failed to notice a few significant observations made
by it in the past. Apart from repeatedly cautioning that Article 136 must be
used ‘sparingly’, the SC has pinpointed the actual duty of the apex court while
entertaining SLPs as well. InKunhayammed
v State of Kerala(AIR 2000 SC 2587),the court had observed that SLPs must be admitted only
in cases where substantial questions of law or public importance are involved
or there is manifest injustice caused.InRafiq
v State UP(1981 AIR 559),
Justice Krishna Iyer had clarified thatSLP
jurisdiction is meant mainly to“correct
manifest injustice or errors of law of great moment”. Further, inBengal Chemicals Ltd v Their
Workmen(AIR 1959 SC633),
a noteworthy exposition of the nature of Article 136 and the SC’s duty can be
seen. The SC held that even thoughArticle 136is couched in the broadest terms as
possible, the SLP jurisdiction must be invoked only in cases where there is
violation of natural justice, substantial and grave injustice done to the
parties or those which require elucidation of important principles of law.
Hence, the SC inMathai
Referenceshould have taken a
more serious look at reconsidering Article 136.

“Limitations on
discretion are as inevitable and abundant as the sources of discretion”[i]

What is as clear as crystal is
thatdiscretion in boundless
terms, which is the essence of Article 136, is what the SC refused to give away
in this case. It is purely human that different persons have dissimilar
standards of applying discretion and it is no different for the SC judges. This
has resulted in totally inconsistent standards of admitting SLPs by the SC as
the court sits in more than 10 division benches!Notably, inPritam Singh v The State(AIR 1950 SC 169), the SC had warned
that as far as possible, a ‘uniform standard’ should be adopted in admitting
SLPs.Unfortunately, no such regular patterns have been
observed by the SC till date.

The outcome
of such an undesirable situation can be best explained by the High Court of
Australia’s judgmentinNorbis
v Norbis((1986) 161 CLR
513):“An unfettered discretion is a versatile means of doing justice in
particular cases,but
unevenness in its exercise diminishes confidence in the legal process”.To avert such a scenario, it is
crucial that broad principles may be expressed to guide the exercise of judges’
discretion under Article 136 as suggested by the reference order. This would
help insinking the significance of personal predilections of each judge/bench
and bring in certain levels of uniformity in exercising such a wide
discretionary jurisdiction.

Moreover, the SC ought to have
remembered that discretion in the ordinary sense and judicial discretion, which
is regulated by rules or judicial principles, are different.[ii] Even the
Black’s Law Dictionary defines judicial discretion as the discretionary action
of a Judge which is bounded by principles of law and not unrestrained.

Even the drafters of Article
136 were of the belief that there ought to be some self-imposed guidelines.
While speaking in the Constituent Assembly on June 6 1949,Shri H.V. Pataskar had stated: “The
Supreme Court is not likely to grant special leavein any matter whatsoever unless it
finds that it involves aserious
breach of some principle in the administration of justice, orbreach of certain principles which
strike at the very root of administration of justiceas between man and man”. Unfortunately, the reference order inMathaishows that after 66 years since its
inception, the SC has not lived up to that founding belief.

The ‘Supreme’ duty of the SC

The nature of guidelines
prescribed in the reference order, the judgments discussed and seen in
the Constituent Assembly Debates essentially aimed at reminding the
SC of its predominant dutyi.e.to adjudicate issues relating to the
Constitution and interpret legal principles. Why this is important is becauseour SC
has not been able to fulfil that duty satisfactorily. According to
Mr. Alok Prasanna Kumar, in 2014,34,500 SLPs relating to civil cases alone were filed in the SCand in almost 44 % of those cases, notice was issued by the SC. This
shows that a non-judicious use of Article 136 jurisdiction has caused the SC to
transform into an ordinary appellate court regularly dealing with very high
number of ordinary civil or criminal appeals.

Consequently,
the number of constitutional cases decided every year has declined. In that
context, Chief Justice T.S. Thakur’s recent move to ensure constitution bench
hearings on every Mondays and Fridays is a welcome step to dispose of all the
25-30 constitutional cases pending in the SC today. If only the SC inMathai Referencehad contributed to this cause, it
would have been an even better start in 2016 for the judiciary.

Tuesday, 19 January 2016

It is a well-known fact that
there are an enormous number of cases that have been filed before the Indian
courts. It is an equally well-known fact that many of these cases have been
pending before the said courts for several years. Talks of pendency always seem to centre on
these huge, and more often than not, unfathomable numbers. There is however, a
third, and lesser discussed aspect to this pressing issue of pendency – the
subject matter of these multiple and much delayed cases.

That is the very question we are
asking in this blog post– what are the kinds of cases that the courts are working
on? To answer this question, we’ve chosen to look at a single High Court from
our database - the High Court of Karnataka.

Among the information we collect
for each case record we have in our database, we have case types. The table
below illustrates the distribution of case types for 2,34,795 case records that
we have for the High Court of Karnataka. In addition, the table compares the
duration of pendency across these various case types. So without further ado, let’s
look at what the High Court of Karnataka is working on.

CASE TYPE

CASE TYPE FULL FORM

PERCENTAGE OF TOTAL CASES

PENDENCY IN DAYS

WP

Writ Petition

30%

866

MFA

Miscellaneous First Appeal

29%

1,168

CRL.P

Criminal Petition

11%

775

RSA

Regular Second Appeal

7%

1,514

RFA

Regular First Appeal

5%

1,553

CRL.A

Criminal Appeal

3%

1,270

CRL.RP

Criminal Revision Petition

2%

1,025

WA

Writ Appeal

2%

991

COP

Company Petition

1%

2,179

ITA

Income Tax Appeal

1%

1,408

MSA

Miscellaneous Second Appeal

1%

1,015

CRP

Civil Revision Petition

1%

935

CA

Company Application

1%

926

RP

Review Petition

1%

902

CMP

Civil Miscellaneous Petition

1%

806

CP

Civil Petition

1%

782

CCC

Civil Contempt Petition

1%

633

MFA.CROB

Miscellaneous First Appeal Cross Objection

0.50%

1,007

RPFC

Review Petition Family Court

0.50%

745

Others

1%

1043

There are multiple inferences that
can be read from this table, but right off the bat, a couple jump out.

The first natural question of
course, is, what kind of cases are most prevalent? At the top of the list, with
a 30 per cent majority are Writ Petitions (WP). To quickly explain, writ
petitions are cases filed by persons whose fundamental right have been violated
by the state. So, in number speak, one third of the cases are those filed
against the government or government agencies.

For an even larger, but not quite
so obvious statistic, consider this: in the second column, just look for the
word ‘appeal’ and then add up the percentages next to each of those case types.
Together, seven case types – various kinds of appeals – account for 48 per cent
of the total. An appeal is in essence a request to a higher court to review and
revise the decision of a lower court. That means for about half these cases
pending before the High Court, judicial time has already been spent, and this is the second time before a court.

The table also throws up possible
correlations (or lack of) between the number of cases and average pendency. According
to the data, Company Petitions (COP) have the longest average pendency of 2,179
days, about six years. However, they make up only 1 per cent of the sample. Whereas,
Writ Petitions (WP), which make up one third of the total, are pending on
average for the relatively shorter time period of 866 days or 2 years and 4
months.

The paragraphs above contain just
a few of my thoughts as I created and looked at this table. They are but a tiny
speck in the pool of questions that can be asked and the analyses that can be
carried out using this data. Ultimately, what this table clearly illustrates is
that understanding the composition of judicial workload is a much needed step
towards building sustainable solutions to pendency.

Do you have any thoughts, ideas
or questions about this data? If you do, let us know by leaving a comment
below. We are eager to hear from you.